Venable v. General Motors Corp.
| Decision Date | 23 January 2003 |
| Docket Number | Docket No. 219037. |
| Citation | 656 N.W.2d 188,253 Mich App 473 |
| Parties | Phillip I. VENABLE, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Law Office of Gregory T. Gibbs (by Jeanmarie Miller), Flint, for the plaintiff.
Hardy, Lewis & Page, P.C. (by Terence V. Page and Kay Rivest Butler) (Keller Thoma, P.C., by Kimberly A. Sordyl and Lincoln G. Herweyer, of Counsel), Birmingham, Detroit, for the defendant.
Before: O'CONNELL, P.J., and FITZGERALD and WILDER, JJ.
ON REMAND
This reverse employment discrimination case is before us on remand from our Supreme Court. In an unusual remand order, the Court stated in part:
The panel is directed to explain ... whether, in affirming summary disposition in favor of defendant, it was necessary to rely on Allen v. Comprehensive Health Services, 222 Mich.App. 426, 564 N.W.2d 914 (1997). If it was not, the Court should explain why not. If it was, the Court should explain why it was and address whether the ["]background circumstances["] test imposed by Allen in evaluating ["]reverse discrimination["] claims is consistent with the Civil Rights Act, M.C.L. § 37.2101 et seq. If so, it should also address whether the test is consistent with state or federal equal protection principles.1 [Venable v. General Motors Corp, unpublished order entered July 31, 2002, 650 N.W.2d 339 (Docket No. 119202).]
From this language we discern that our Supreme Court has ordered us to (1) determine if this Court's previous opinion in Allen was wrongly decided and (2) determine if the Allen decision is outcome determinative of the present case.2 We conclude that Allen was wrongly decided and that the Allen decision is not outcome determinative of the present case.3 Thus, we again affirm the trial court's order granting summary disposition for defendant.4
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the United States Supreme Court established the elements of a prima facie case for claims alleging race discrimination in employment under title VII of the Civil Rights Act of 1964, 42 USC 2000e et seq.
The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications. [McDonnell Douglas, supra at 802, 93 S.Ct. 1817.]
In Town v. Michigan Bell Telephone Co., 455 Mich. 688, 568 N.W.2d 64 (1997), our Supreme Court adapted the McDonnell Douglas framework to the Michigan Civil Rights Act. This was done to accommodate additional types of discrimination claims— including employment discrimination based on sex and age—and to accommodate other "adverse employment action[s]." Id. at 695, 568 N.W.2d 64 (Brickley, J., with Boyle and Weaver, JJ., concurring). The framework, long used by courts of this state,5 requires a showing that plaintiff was "(1) a member of a protected class, (2) subject to an adverse employment action, (3) qualified for the position, and that (4) others, similarly situated and outside the protected class, were unaffected by the employer's adverse conduct." Id. at 695, 568 N.W.2d 64 (Brickley, J., with Boyle and Weaver, JJ., concurring), at 707, 568 N.W.2d 64(Riley, J., concurring in the judgment); see also Lytle v. Malady (On Rehearing), 458 Mich. 153, 171-173, n. 19, 579 N.W.2d 906 (Weaver, J., with Boyle and Taylor, JJ., concurring), at 185, 579 N.W.2d 906 (Brickley, J., concurring in the judgment); 579 N.W.2d 906 (1998).
We believe Allen was wrongly decided because Allen improperly modified the McDonnell Douglas framework by adding an element for reverse employment discrimination cases.6 Citing questionable federal precedent,7 the Allen Court concluded that reverse discrimination plaintiffs can rely on the McDonnell Douglas framework to establish "a prima facie case of intentionally disparate treatment only `when background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.'" Allen, supra, 222 Mich.App at 432, 564 N.W.2d 914 (emphasis added), quoting Parker v. Baltimore & O R Co., 209 U.S. App DC 215, 220, 652 F.2d 1012 (1981). This additional element has become known as the "background circumstances" test. The Allen Court reasoned as follows:
Recognizing that "[t]he facts necessarily will vary in Title VII cases," the McDonnell Douglas Court noted that its specification of the prima facie burden of proof "is not necessarily applicable in every respect to differing factual situations." Id. at 802, n. 13, 93 S.Ct. 1817.
The District of Columbia Circuit Court of Appeals accepted this invitation to modify the McDonnell Douglas test for purposes of a "reverse discrimination" claim in Parker [,] [supra ]....
* * *
... The Parker court held that majority plaintiffs [i.e., Caucasian or male plaintiffs] can rely on the McDonnell Douglas criteria to prove a prima facie case of intentionally disparate treatment only "when background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority." Id.
The Parker analysis has been followed by appellate courts in at least three other federal circuits. With these courts, we conclude that Parker appropriately modified the McDonnell Douglas test for application to a reverse discrimination claim brought under title VII. Further, recognizing that these precedents are not binding upon us in reverse discrimination claim brought under title VII. Further, recognizing that these precedents are not binding upon us in interpreting Michigan's Civil Rights Act, we nonetheless are convinced by the Parker analysis and adopt its approach for purposes of this statute as well.
Accordingly, we hold that a reverse discrimination plaintiff who has no direct evidence of discriminatory intent may establish a prima facie claim of gender [sex] discrimination under the Civil Rights Act with respect to a promotion decision by showing (i) background circumstances supporting the suspicion that the defendant is that unusual employer who discriminates against men; (ii) that the plaintiff applied and was qualified for an available promotion; (iii) that, despite plaintiff's qualifications, he was not promoted; and (iv) that a female employee of similar qualifications was promoted.8 Upon this showing, a "presumption" of discriminatory intent is established for possible rebuttal by the employer. Absent this showing, a reverse discrimination plaintiff who has no direct evidence of discriminatory intent cannot proceed. [Allen, supra, 222 Mich.App. at 430-433, 564 N.W.2d 914 (citations omitted; emphasis added).]
By adding the "background circumstances" test to the McDonnell Douglas framework, Allen made it more difficult procedurally for a Caucasian or male plaintiff-employee than for an African-American or female plaintiff-employee to allege employment discrimination. See Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 801, n. 7 (C.A.6, 1994). While the McDonnell Douglas decision allowed its framework to be adapted to different types of discrimination or different types of "adverse employment action[s]" (Town, supra at 695, 568 N.W.2d 64), Allen clearly departed from McDonnell Douglas and added an entire element to the framework.
In our opinion, the "background circumstances" test imposed by Allen in evaluating reverse employment discrimination claims is inconsistent with the Michigan Civil Rights Act. The Civil Rights Act does not make a distinction concerning whether an employee alleging race discrimination is Caucasian or African-American. It only provides that "[a]n employer shall not ... discriminate against an individual with respect to employment ... because of religion, race, color, national origin, age, [or] sex...." M.C.L. § 37.2202(1)(a). That is, any individual, Caucasian or African-American, male or female, is protected from race or sex discrimination under the Civil Rights Act. Consequently, ordinary and reverse discrimination claims are equally sustainable under the Civil Rights Act.9 See Pierce, supra. Therefore, we hold that the Allen Court erred in adding the "background circumstances" test to a prima facie case for plaintiffs alleging reverse discrimination in employment.
The facts of this case were set forth in our previous opinion:
Plaintiff, a sixty-one-year-old Caucasian male, was discharged from his employment with defendant in 1996 after approximately thirty-one years of service. At the time of his discharge, plaintiff held the position of a sixth-level supervisor in defendant's Service Parts Organization (SPO) plant in Swartz Creek. In August 1996, defendant received a phone call from an anonymous individual on its "Awareline," a confidential toll-free number defendant's employees used to report suspected misconduct. The caller alleged that plaintiff had been observed leaving the SPO facility on company time with hourly employees and drinking at a nearby bar. Subsequent surveillance by defendant confirmed the caller's allegations, and plaintiff was discharged. Plaintiff's termination in October 1996 followed a meeting for all sixth-level supervisors held in the spring of 1996, where management personnel warned employees that they would be immediately...
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